The New York Court of Appeals has recently decided the last of a trilogy of decisions, which began over 40 years ago, and which define a court's discretion to reopen a suppression hearing in a number of contexts. In People v. Cook, 2019 N.Y. Slip Op 09059 (2019), the court held that a suppression court retains the right to reopen a hearing after both parties have rested but before the court rules on the motion.

A request to reopen a hearing can be made, of course, by either the defense or prosecution. A defendant's request is governed by statute. Under CPL §710.40, a defendant must make a two-pronged showing: the defendant (1) must establish "additional pertinent facts"; and, (2) must show that those facts could not have been discovered with reasonable diligence before the determination of the suppression motion.

Trial courts have considerable discretion in determining a defendant's motion to reopen a hearing and such decisions are reviewed under an abuse of discretion standard. In many cases, therefore, the denial of motions to reopen have been upheld; occasionally, however, an appellate court will find that a suppression court abused its discretion in not granting a defense request to reopen a hearing. As examples, it was error for a trial court to deny a motion when a witness at trial contradicted the very testimony that led the hearing court to deny the suppression motion. People v. Velez, 39 A.D.3d 38 (2d Dept. 2007). Or, when a prosecution witness revealed testimony at the trial that, for the first time, supported a theory of suppression. People v. Perez, 104 A.D.2d 454 (2d Dept. 1984). And defense counsel can be found ineffective for not moving to reopen a suppression hearing where there was no reasonable strategy for failing to do so. People v. Kindell, 135 A.D.3d 423 (1st Dept. 2016).

Requests by prosecutors to reopen a suppression hearing are more nuanced and are governed by a number of policy considerations. Forty-two years ago, the Court of Appeals announced, for the first time, the "one full opportunity" rule. In People v. Havelka, 45 N.Y.2d 636 (1978), the defendant had moved unsuccessfully, prior to trial, to suppress a handgun and blackjack found on his person. The Appellate Division, Second Department, found the evidence offered at the hearing insufficient to justify the challenged police action. The appeal was held in abeyance, and the case remitted for a hearing to give the People an opportunity to offer further evidence. At the new hearing, the prosecution called an additional witness to establish that the search had been justified. After the reopened hearing, the lower court found the evidence sufficient to deny suppression, and the Appellate Division affirmed.

The Court of Appeals reversed the conviction and dismissed the indictment, concluding that an appellate court cannot hold an appeal in abeyance and remit a case to allow the prosecution to get "two bites" of the same apple. The court stressed that, having had a full opportunity to be heard at the first hearing, the People could not get "a second chance to succeed where once they tried and failed." Id. at 643. Finally, the court was concerned that the practice of ordering a new hearing could lead to abuse through the tailoring of testimony to fit the requirements established by the appellate court's opinion.

The court later applied the Havelka rule to preclude suppression courts from granting a prosecution request to reopen a hearing after the suppression court has ruled on the motion. In People v. Kevin W., 22 N.Y.3d 287 (2013), the People chose to establish reasonable suspicion by calling a police officer whose testimony was "sketchy", according to the judicial hearing officer (JHO) who heard the testimony. As a result, the JHO concluded that the gun was seized as a result of an illegal stop.

The court adopted the JHO's findings and granted suppression. Based upon the People's motion for reargument, the court sent the matter back to the JHO to give the prosecutor an opportunity to call a second, much stronger witness. Based on that officer's testimony, the JHO found that there was reasonable suspicion to seize the defendant and recommended a denial of the suppression motion.

The court adopted the JHO's findings and denied suppression. On appeal, the Appellate Division reversed, granted suppression and dismissed the indictment.

In affirming, the Court of Appeals relied on the reasoning in Havelka to preclude a judge from reopening a suppression hearing after a ruling, to give the People an opportunity to shore up their evidentiary or legal position, absent a showing that they were deprived of a full and fair opportunity to be heard. The court balanced two competing public policy interests: a policy in protecting legitimate police conduct as opposed to the finality of proceedings, requiring parties to be prepared with their best evidence.

In Cook, the court was asked to extend Havelka to an even earlier stage of the proceedings, i.e., prior to a court's decision on the motion. The court, however, was not prepared to go that far, holding that Havelka had reached "the limit of its logic" (quoting Messersmith v. American Fidelity Co., 232 N.Y. 161 (1921)). The court ruled, instead, that a suppression court does have the discretion to reopen a hearing after both parties have rested, but before the court rules on the motion. Such decisions are subject to review under a traditional abuse of discretion standard.

The facts in Cook bore some resemblance to Kevin W. The People called only one police officer to establish reasonable suspicion that would have justified the seizure of the defendant. After the parties rested, and during oral argument, the suppression court expressed its concern that the officer's testimony was of limited relevance. The People responded that they had other witnesses available to testify but the court stated that this was impermissible because the People had rested.

The following morning, the court changed course after conducting its own research, and determined that it still had the discretion to reopen the hearing. It did not do so immediately, explaining that it would not continue with argument on the merits of the suppression motion if the People intended to make a motion to reopen. The court was concerned that, by continuing argument, it would be, in effect, telling the prosecution what evidence was needed to shore up its position.

At that point, the People formally requested that the hearing be reopened and that application was granted. Defense counsel was then informed that she would be afforded as much time as necessary to cross-examine on whether the additional testimony was tailored to the issues raised at the initial argument on the merits of the suppression motion. Upon reopening, the prosecution called a second police officer and based upon the testimony of both police officers the suppression court denied suppression.

The Court of Appeals was left to resolve the question of whether the suppression court had abused its discretion in reopening the hearing. In assessing whether the lower court had exercised reasonable discretion, the Court of Appeals had to balance whether the lower court had implemented any safeguards to preserve the truth-seeking function of the reopened hearing against the risk that testimony at the hearing would be tailored to the issues raised at the initial argument on the merits of the motion.

Although during argument, the hearing court had expressed some skepticism regarding the initial officer's testimony, once the prosecution indicated it wanted to reopen the hearing, the court refused to entertain or comment on any additional arguments on the merits. In addition, the court addressed the risk of tailoring by providing defense counsel wide latitude in cross-examining the People's witnesses.

With these safeguards in place, the hearing court had taken reasonable steps to prevent the tailoring of testimony at the reopened hearing. In addition, the nature of the proof that was subsequently offered by the People was sufficiently attenuated from the original evidence to ensure that any risk of tailoring was minimal.

Thus, in Cook, the Court of Appeals has provided suppression courts with guidance on when they can reopen hearings and, just as important, what factors must be considered before doing so. In setting appropriate boundaries, the court has, once again, stressed "the unacceptability of encouraging strategic gamesmanship" in criminal cases. People v. Grega, 72 N.Y.2d 489, 504 (1988) (Bellacosa, J., dissent).

Barry Kamins is a partner at Aidala, Bertuna & Kamins and author of New York Search and Seizure (LexisNexis 2019). He is a former New York State Supreme Court Judge.